Speaker 1: Just before nine o'clock last night, the jury returned guilty
Speaker 1: verdicts against all three defendants. It was absolute shambles, to
Speaker 1: tell you the truth, just absolutely really coming.
Speaker 2: Blood on his clothing. The day after the alleged.
Speaker 3: Atap on a show a mud bank and it fits
Speaker 3: through a river.
Speaker 1: Basically, I think most of the people are used to
Speaker 1: me are good people.
Speaker 3: I think a really important question we need to ask
Speaker 3: is how many Indigenous prisoners in Australia are innocent.
Speaker 2: This is Curtain, a podcast where we pull back the
Speaker 2: blinds to shine a light on the darkest parts of
Speaker 2: our justice system and ask who are the victims. I'm
Speaker 2: Amy Maguire and I'm.
Speaker 3: Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service.
Speaker 3: And a warning. This series contains the names of deceased
Speaker 3: peoples and has distressing content that might upset some listeners.
Speaker 4: What went wrong and how can we fix it? When
Speaker 4: there's a total system failure? And that's what the conviction
Speaker 4: of an innocent is a total system failure. What we
Speaker 4: do is use DNA testing to get people out of
Speaker 4: jail who did not commit the crimes. It really began
Speaker 4: for us in a case nineteen eighty seven eighty eight
Speaker 4: involving an inmate named Marion Cochley who was wrongfully convicted
Speaker 4: of a robbery rape in the Bronx. And in that
Speaker 4: case we tried to use DNA testing, and this was
Speaker 4: before DNA testing was even in the courts. It was
Speaker 4: nineteen eighty eight, and there was not enough high molecular
Speaker 4: weight DNA to get a result. But we realized from
Speaker 4: that moment that this could be a transformative technology and
Speaker 4: it would be able to exonerate a lot of innocent people,
Speaker 4: would be able to apprehend the real perpetrators, and it
Speaker 4: also would shine a window on what we believed were
Speaker 4: lots of wrongful convictions. My colleague Peter Neufeld and I
Speaker 4: we actually knew from the very beginning that there were many,
Speaker 4: many more wrongfully convicted people than anybody lived, and the
Speaker 4: DNA can demonstrated. We knew that, but obviously when you
Speaker 4: live through it and you start seeing this one after another, ah,
Speaker 4: it's quite extraordinary.
Speaker 1: Welcome to episode twenty four of Curtin the podcast that
Speaker 1: was Barry Shack from the Innocence Project. He has more
Speaker 1: than forty years experience in addressing wrongful convictions. In fact,
Speaker 1: he's overturned more wrongful convictions than any other lawyer on earth.
Speaker 1: He studied at both Yale and UC Berkeley's School of Law,
Speaker 1: so to say that he is qualified in this area
Speaker 1: is an understatement. Last week we spoke about how a
Speaker 1: jury found Kevin Henry guilty beyond a reasonable doubt. Clearly,
Speaker 1: with all the evidence you've heard, we feel, and from
Speaker 1: the feedback we've heard from all of you, is that
Speaker 1: it's very difficult to understand how Kevin Henry could possibly
Speaker 1: have been found guilty. So, as mister Sheck says, something
Speaker 1: must have gone wrong. And this week we're going to
Speaker 1: highlight how it's possible for someone to be found guilty
Speaker 1: beyond a reasonable doubt even when it's quite clear from
Speaker 1: all the evidence that they didn't commit the crime.
Speaker 2: In this episode, we're going to go back to the
Speaker 2: court transcripts. Now we're going to outline three cases of
Speaker 2: failure in the justice system that led to the ultimate
Speaker 2: system failure, the conviction of an innocent Aboriginal man who
Speaker 2: stayed locked up in jail for over a quarter of
Speaker 2: a century. Martin. What's the first of those failures?
Speaker 1: Okay, so one of the failures that I think really
Speaker 1: occurred in this trial was that of the forensic evidence
Speaker 1: that was presented. Now, previously we've gone over the issues
Speaker 1: of blood, the way the blood was examined, the body
Speaker 1: was examined, issues to do with the way forensic evidence
Speaker 1: was collected. But as we've spoken about throughout this podcast,
Speaker 1: very clearly, the tides in the river played a crucial factor,
Speaker 1: and present at the trial and giving evidence was a
Speaker 1: gentleman called as an expert in this area. So to
Speaker 1: address this and in summarizing just how important tides were
Speaker 1: to the case, particularly the murder charge, the judge included
Speaker 1: this statement in his summation. Clearly in relation to the
Speaker 1: charge of murder, the critical issue that is raised by
Speaker 1: mister Murray on Kevin Henry's behalf is the contention that
Speaker 1: it was not Henry who threw her into the river.
Speaker 1: And it seemed to me tides are relevant to this,
Speaker 1: and I would remind you of them. Now. The judge
Speaker 1: would go on to explain quite a bit of detail
Speaker 1: as to what was presented about the tides and why
Speaker 1: they were so critical, But rather than read all of that,
Speaker 1: I'll quickly remind you remember, as we explained that, as
Speaker 1: everyone agrees, if Linda's body was placed into the river
Speaker 1: at the time Kevin Henry is alleged to have done it,
Speaker 1: he would have had to do so by walking through
Speaker 1: deep mud that came up to at least his knees,
Speaker 1: perhaps higher, and he would have had to have gotten wet.
Speaker 1: And nowhere was any mud or any water stains found
Speaker 1: on his shoes or any clothes that he was wearing,
Speaker 1: and there was no evidence he ever went into the river.
Speaker 1: The tides also impact on where the body was found,
Speaker 1: and the tides, as we've discussed in previous episodes, also
Speaker 1: help us show that not only did Kevin not place
Speaker 1: Linda's body in the river, but that the body was
Speaker 1: played on the racecourse side of the river, not the
Speaker 1: Tanuba House side of the river. And again, as I discussed,
Speaker 1: a witness was called to deal with this very issue.
Speaker 1: You would assume that a witness called on this issue,
Speaker 1: and this issue of tides alone, a witness who was
Speaker 1: local to Rockhampton and working for the Queensland Government in
Speaker 1: a capacity that placed them on the river daily would
Speaker 1: understand the tides of the river very well. But this
Speaker 1: witness didn't, and this was an expert witness. In attempting
Speaker 1: to explain the tides of the day the September on
Speaker 1: the night of Linda's murder, the witness kept referring to
Speaker 1: the thirty first of August, the Friday, and the judge
Speaker 1: was forced to bring them back to the first of September,
Speaker 1: the crucial day, the day it matters. And then this
Speaker 1: expert detailed the tide times, and it was the judge
Speaker 1: no one else who picked up something was wrong. And
Speaker 1: this is what his honor said. You have got them
Speaker 1: reversed for each day. You see, the high tide on
Speaker 1: the thirty first was at one thirty PM. That's the
Speaker 1: first high tide answer, that's right. Then there is a
Speaker 1: low tide at eight thirty seven PM, and a high
Speaker 1: tide at one forty one PM, and the first and
Speaker 1: a low tide at eight point fifty am on the
Speaker 1: first answer. That's correct. Now, the exact details of all
Speaker 1: the tides and times I just mentioned is not important.
Speaker 1: What's important is the judge was forced to clarify that,
Speaker 1: in fact, this expert witness was getting the high tides
Speaker 1: and the low tides around the wrong way, and he
Speaker 1: was getting AM and PM around the wrong way. Later
Speaker 1: in this expert's testimony, which went on for a considerable
Speaker 1: period of time, the expert was asked to identify on
Speaker 1: a photo where the tide would have been when the
Speaker 1: police accused Kevin Henry of placing Linda's body in the water.
Speaker 1: And the reason the court needed to know this, and
Speaker 1: the reason we all need to know this is so
Speaker 1: we could tell how far through the mud Kevin would
Speaker 1: have to walk. But the expert witness couldn't do it.
Speaker 1: This is what happened when the witness was asked about
Speaker 1: these figures after repeat failures. These are figures that relate
Speaker 1: to high and low tide. Question, are you familiar with
Speaker 1: the title heights at that time? Answer by the expert
Speaker 1: not as far as figures go. I can't give you
Speaker 1: a tide figure. No, that is the answer from an
Speaker 1: expert witness. Their entire job for this trial was precisely,
Speaker 1: if nothing else but to give that figure. And all
Speaker 1: they would have needed was a tide chart. Now I
Speaker 1: have one in front of me right now, and I
Speaker 1: will read to you what the tide is right now
Speaker 1: in Rockhampton. The tide is two point one meters and
Speaker 1: the tide is falling now. Of course I've read this
Speaker 1: from a title chart taken from the Internet, but tide
Speaker 1: charts taken the exact same way using the same equipment
Speaker 1: were available at the time at almost any fishing store,
Speaker 1: and certainly available to this expert witness who did this
Speaker 1: for a job. In fact, a brief study of tides
Speaker 1: shows that the Egyptians knew the height of tides three
Speaker 1: hundred and fifty six years before or the birth of Christ.
Speaker 1: We are not asking for new technology to have been used.
Speaker 1: This is information that is available to all and has
Speaker 1: been for centuries. Now. There's one more point that needs
Speaker 1: to be raised, as the judge tried to clarify the
Speaker 1: issue of tides and why he was so insistent when
Speaker 1: he was explaining to the jury they needed to remember
Speaker 1: what had been said, is that the expert also admitted
Speaker 1: he was not using the tides from Rockhampton. They took
Speaker 1: the tide times and the tide heights that they got wrong,
Speaker 1: but nonetheless used the tide times and tide heights from
Speaker 1: another location about thirty minutes drive from Rockhampton. But tides
Speaker 1: change depending on location, and so I'll tell you what
Speaker 1: those tides are, right Now as I record this, the
Speaker 1: tide in Rockhampton is two meters and falling. It has
Speaker 1: two and a half hours until the low tide. At
Speaker 1: the location that the expert witness used for the tides
Speaker 1: for this case that occurred in Rockhampton, the tide is
Speaker 1: currently one point six meters and rising. They are not
Speaker 1: the same. One is rising, one is falling, and their
Speaker 1: heights are different. The water is moving in two different
Speaker 1: directions based on the locations, and the height of the
Speaker 1: tide is different. This expert testimony is not expert at all.
Speaker 1: Despite the fact the judge was so insistent that tide
Speaker 1: times and tide heights were so important in this case,
Speaker 1: and as you know from listening to this podcast, tides
Speaker 1: were crucial. They would have proven that Kevin Henry could
Speaker 1: not possibly have placed the body of Linda in the water.
Speaker 2: That seems like a huge oversight. Did the prosecution or
Speaker 2: defense pick that up, Martin.
Speaker 1: Unfortunately they didn't, And the judge actually talked about this
Speaker 1: not only during the trial itself, but during his summation,
Speaker 1: and he said he believed counsel would have considered it
Speaker 1: more in cross examination. So the judge himself was quite
Speaker 1: confused as to a how there was this expert getting
Speaker 1: issues such as AM and PM wrong, low and high
Speaker 1: tides wrong. The judge was also confused as to why
Speaker 1: was this not raised by the lawyers involved, particularly the
Speaker 1: lawyers representing Kevin Henry. Again, this was a complete failure, Mardin.
Speaker 2: We promised Elliston as three examples of system failure. What
Speaker 2: is the second one?
Speaker 1: Okay? So the second failure has to do again with
Speaker 1: forensic evidence, but more importantly a failure on the defense's behalf,
Speaker 1: those representing Kevin Henry. The defense ran an argument that
Speaker 1: Linda may have been intoxicated that night. Now, it was
Speaker 1: known to all, or should have been known to all,
Speaker 1: that Linda was not intoxicated at all. Her blood alcohol
Speaker 1: was zero. The only things she had in her system
Speaker 1: were traces of the medication she was using to treat
Speaker 1: her illness. She had no drugs in her system and
Speaker 1: no alcohol in her system. Now, why it was assumed
Speaker 1: that Linda was drunk can be summed up in two ways.
Speaker 1: Either a failure on behalf of all involved to read
Speaker 1: the forensic report that clearly stated Linda had zero alcohol
Speaker 1: in her system, or it was assumed that Linda, like
Speaker 1: many of the people, in fact, everyone else at Tanuba
Speaker 1: House that night had been drinking. She had not. An
Speaker 1: assumption of this kind is simply unacceptable in all matters.
Speaker 1: But when Linda had lost her life, the assumption that
Speaker 1: she was drunk like everyone else is a disgusting association
Speaker 1: to make with Aboriginal people and Aboriginal women that they
Speaker 1: would have to be drunk no matter what, And it's
Speaker 1: a complete disregard for Linda's rights as the victim. But
Speaker 1: the way it impacted on Kevin Henry's trial was that
Speaker 1: the defense ran the argument that much of the forensic
Speaker 1: evidence could have been wrong if Linda was intoxicated, and
Speaker 1: the pathologist agreed with this issue, And the pathologist went
Speaker 1: on for a number of pages in the transcript, So
Speaker 1: we're talking at least ten minutes with a whole bunch
Speaker 1: of scenarios of what could have happened that night if
Speaker 1: Linda had been drunk. At no point at that part
Speaker 1: of the trial did anyone intervene, knowing full well Linda
Speaker 1: had zero blood alcohol, to say that it was not
Speaker 1: the case. Now, it was clarified later on when the
Speaker 1: prosecutor realized the mistake and it was in fact the
Speaker 1: prosecutor's error. In the first place, he had the certificate
Speaker 1: that showed Linda had zero intoxication, and he should have
Speaker 1: presented it as evidence before the court, and he was
Speaker 1: scolded by the judge for not doing so. But all
Speaker 1: involved should have been aware. Now much of the evidence
Speaker 1: that the pathologist gave about Linda potentially being intoxicated would
Speaker 1: have helped Kevin Henry, and the defense had managed to
Speaker 1: get that on record. Even though they got it on
Speaker 1: record in error, they did get it on record and
Speaker 1: it did assist Kevin Henry. And so when the prosecutor
Speaker 1: asked to place the evidence that Linda was not intoxicated
Speaker 1: on the record, the judge did not wish to grant
Speaker 1: that because it was the prosecution's mistake. Beneficial evidence had
Speaker 1: been provided on Kevin Henry's behalf, and yet the prosecution
Speaker 1: insisted that they would recall this witness and have another
Speaker 1: go at getting in this information about Linda's intoxication. The
Speaker 1: lawyer for Amy Saunders objected, and the judge agreed that
Speaker 1: the prosecutor was at fault. It is the Crown the
Speaker 1: prosecutor's job to prove beyond a reasonable doubt that Kevin
Speaker 1: Henry committed this crime and the prosecutor had made an
Speaker 1: error and Kevin Henry shouldn't have to suffer for it.
Speaker 1: But when the judge asked the defense attorney, mister Murray,
Speaker 1: Kevin Henry's barrister, if he objected to this new evidence,
Speaker 1: mister Murray said no, he did not object, and he
Speaker 1: allowed this witness to be called back to the stand
Speaker 1: to clarify the error. And because that was done, that
Speaker 1: had tried to dismiss the idea of Kevin Henry being
Speaker 1: involved based on that particular pathological evidence was ruined because
Speaker 1: all he'd done was based the assumption that Linda had
Speaker 1: been drunk. There was clearly other avenues he could have
Speaker 1: gone down. He didn't because of an assumption or because
Speaker 1: of a lazy error. So remember, Kevin Henry had evidence
Speaker 1: presented on his behalf that helped him, and that was
Speaker 1: the judge who agreed this. The prosecutor admitted he made
Speaker 1: a mistake, but Kevin Henry's own lawyer allowed that mistake
Speaker 1: to be corrected that should have never taken place.
Speaker 2: One of the problems I have with this point is
Speaker 2: that what would have ultimately helped Kevin was based on
Speaker 2: an error of the prosecution, which was based on a
Speaker 2: fundamental untruth about Linda the victim. How does this work,
Speaker 2: because surely it speaks to the real complexity in the
Speaker 2: justice system that this sort of untruth about an Aboriginal
Speaker 2: woman could have ultimately helped Kevin Henry in the end.
Speaker 1: Yeah, it's a very good point. I think there's two
Speaker 1: ways of answering that. First is that it's the crown's obligation,
Speaker 1: that being the prosecutor, to prove beyond a reasonable doubt
Speaker 1: that Kevin Henry was guilty. So if that prosecutor makes
Speaker 1: an error that provides doubt, then that doubt is to
Speaker 1: go in mister Henry's favor. But you raise a very
Speaker 1: good point, which is that that doubt was raised on
Speaker 1: an untruth. Now it still should have been left to stand,
Speaker 1: but it wasn't. So let's deal with the untruth and
Speaker 1: the issue with that and why it still impacts mister Henry.
Speaker 1: Mister Henry's evidence did not require Linda to have been intoxicated,
Speaker 1: so the correct forensic evidence could have been presented to
Speaker 1: the pathologist about why it was not possible for mister
Speaker 1: Henry to have committed this crime, even if Linda was
Speaker 1: accurately described as not intoxicated. But because not only the prosecutor,
Speaker 1: but the defense had both assumed that Linda was in
Speaker 1: fact intoxicated at this time, all arguments presented for mister
Speaker 1: Henry were simply inaccurate because again they were based on
Speaker 1: this falsehood. So the assumption or the error, which one,
Speaker 1: it doesn't really matter that Linda was intoxicated when she
Speaker 1: wasn't A harms Linda's reputation and she is the victim
Speaker 1: here and that he's completely unacceptable and B meant the
Speaker 1: defense went down the wrong path, a path that would
Speaker 1: be corrected when had they done their homework, they could
Speaker 1: have easily presented forensic evidence that would have shown Kevin
Speaker 1: could not have committed this crime even if Linda wasn't intoxicated,
Speaker 1: and she wasn't. So that's why this misstruth, this assumption,
Speaker 1: this racist suggestion about Linda harmed both Kevin Henry and
Speaker 1: harmed Linda Mardin.
Speaker 2: We've already heard two the systems failures, one regarding the
Speaker 2: title levels and the experts and the other regarding Linda's
Speaker 2: intoxication levels. What was the third failure.
Speaker 1: Okay, the third is perhaps the most important. We have
Speaker 1: to remember that Kevin Henry was on trial with the
Speaker 1: two of the women who would later be found guilty
Speaker 1: of grievous bodily harm. That's Amy Saunders and Susan Aubrey.
Speaker 1: They committed the vicious assault against Linda, to which there
Speaker 1: was a bunch of forensic evidence, witnesses, their own admission,
Speaker 1: there was simply no doubt that this occurred. But in
Speaker 1: Kevin Henry's case, there was no forensic evidence pointing to him,
Speaker 1: there was no eyewitnesses, and so throughout the trial the
Speaker 1: judge raised great concern that Kevin was being tried alongside
Speaker 1: the women, and that perhaps his lawyers should consider separating
Speaker 1: out the trial so that the two women stood trial
Speaker 1: together and Kevin Henry stood trial on his own. Now,
Speaker 1: at each point this was offered up, those representing Kevin
Speaker 1: said no, they wished it to continue as it was.
Speaker 1: But at one point, quite late in the trial, with
Speaker 1: only one or two witnesses left to be called, the
Speaker 1: judge was clearly concerned. And that's because a statement given
Speaker 1: by Susan Aubrey was accepted by the prosecution and the
Speaker 1: defense during the trial to be inaccurate, to be inadmissible
Speaker 1: and unlawful because of the way that it was taken
Speaker 1: and because of the lies that were told in it.
Speaker 1: The judge at this point instructed the jury that what
Speaker 1: they'd heard her say, those lies about Kevin Henry, could
Speaker 1: not be used against Kevin Henry, and that they must
Speaker 1: dismiss them. But of course, as we all know, once
Speaker 1: you've heard something, even if you're now told it's a lie,
Speaker 1: it could be hard to dismiss. You can't simply forget
Speaker 1: it and pretend you've never heard it. And so the
Speaker 1: judge once again had the jury leave the courtroom and
Speaker 1: asked Kevin Henry's solicitor and barrister whether they wished for
Speaker 1: a separate trial. Kevin henry solicitor and barrister left the
Speaker 1: court to speak with Kevin Henry, and I will read
Speaker 1: from the transcript what happened when they returned, your honor.
Speaker 1: I apologize for being longer than I anticipated. We notoriously
Speaker 1: tend to underestimate time. So this is mister Murray talking
Speaker 1: about the length of time it took him to speak
Speaker 1: to mister Henry and explain what the judge was recommending.
Speaker 1: So mister Murray continues, I understand your honor's remarks to
Speaker 1: be directed towards the material that the jury heard yesterday
Speaker 1: in relation to the first record of interview of Susan Albury.
Speaker 1: So there he's saying about what the judge said to
Speaker 1: the jury about ignoring what Susan Aubrey had said in
Speaker 1: that first interview. But mister Murray went on and continued,
Speaker 1: after reviewing the trial thus far and the material that's
Speaker 1: gone before the jury, the decision has been taken by
Speaker 1: my client after discussion with my instructing solicitor and I,
Speaker 1: that he would not seek your Honor's discretion to separate
Speaker 1: the charges on the indictment, to seek that this trial
Speaker 1: be aborted, and he will continue on charge on the
Speaker 1: indictment with the two others accused. I thank your Honor
Speaker 1: for your consideration. So to explain that briefly, mister Murray
Speaker 1: has come back having spoken with the solicitor for Kevin Henry,
Speaker 1: and Kevin Henry put it to Kevin that he could
Speaker 1: have the trial that has currently gone on be aborted
Speaker 1: and a new trial started afresh without any of the
Speaker 1: evidence that had been prejudicial against mister Henry, that should
Speaker 1: not have been allowed in that had slipped through. Primarily
Speaker 1: that relates to Susan Aubrey's statement, but it also related
Speaker 1: to some of the forensic material. And yet we are
Speaker 1: told that Kevin Henry did not wish to have the
Speaker 1: trial aborted and that he wanted to continue. There is
Speaker 1: only a few things that could have happened. A Kevin
Speaker 1: Henry understood exactly the legal arguments that were being put
Speaker 1: to him. B Kevin Henry did not understand the legal
Speaker 1: arguments that were being put to him and what was
Speaker 1: going on or c They were not correctly explained to him.
Speaker 1: Understanding that Kevin Henry, at the time and to this
Speaker 1: day is illiterate, had no training whatsoever in the legal system.
Speaker 1: And here we are dealing with a highly complex matter
Speaker 1: that the lawyers seemed to not understand so much that
Speaker 1: the judge was having to instruct them to go off
Speaker 1: and think about it. This wasn't a one off. The
Speaker 1: judge had offered this up multiple times until the judge
Speaker 1: became so concerned he instructed the solicitor and the barrister
Speaker 1: to take this to get Kevin Henry, and I would
Speaker 1: put it to you that the system failure here is
Speaker 1: that mister Henry did not understand what was going on,
Speaker 1: that it was not properly explained to him that this
Speaker 1: trial could be aborted and that he could have a
Speaker 1: fresh trial where he would be the only accused in
Speaker 1: the dock, and none of the evidence that had been
Speaker 1: heard by the jury that was now dismissed would be presented.
Speaker 1: It would be a fresh slate without any of that
Speaker 1: confusion allowed to continue. But in the clear confusion that
Speaker 1: must have gone on, perhaps some even suggested to mister Henry,
Speaker 1: remember remembering he was in prison all this time, that
Speaker 1: he would spend more time on remand and more time
Speaker 1: in custody if he was to have a fresh trial,
Speaker 1: and maybe he should just let this continue. And if
Speaker 1: that's the case, if Kevin Henry didn't want to spend
Speaker 1: more time I'm in prison to see a new trial
Speaker 1: come about, having already waited six months, and if it
Speaker 1: had not been properly explained to him that this trial
Speaker 1: could be aborted and that it would be favorable for
Speaker 1: a new trial to commence, this was a total system failure.
Speaker 1: Mister Henry was not able to give proper instructions because
Speaker 1: he didn't have the capacity to do so, just as
Speaker 1: he was denied that capacity in the first and second
Speaker 1: interviews he gave police where he himself asked for legal
Speaker 1: representation and assistance. This is perhaps the worst of the
Speaker 1: system failures and clearly catastrophic that Kevin Henry's illiteracy, Kevin
Speaker 1: Henry's aboriginality, where Kevin came from and who he was
Speaker 1: was the reason why a trial the judge clearly felt
Speaker 1: was unfair and had presented evidence that should not have
Speaker 1: been heard by a jury, was allowed to continue. This
Speaker 1: was not Kevin Henry's fault. This catastrophic system failure should
Speaker 1: have been rectified by those who were representing him, and.
Speaker 3: It wasn't so.
Speaker 2: At the getting of this episode, you heard from Barrysheck,
Speaker 2: who was the founder of the Innocence Project over in America.
Speaker 2: But the Innocence Project focuses on exonerations where there's DNA evidence.
Speaker 2: In Kevin's case, there was no DNA evidence. So what
Speaker 2: happens in cases of wrongful conviction where there's no DNA
Speaker 2: Here's what Barry Sheck said.
Speaker 4: Only five percent of cases have any biological evidence where
Speaker 4: you can do a DNA test and determine identity or
Speaker 4: guilt or innocence. So what about the other ninety five
Speaker 4: percent of the cases where you have what we know
Speaker 4: to be the causes of wrongful convictions. Eyewitness misidentify, vction,
Speaker 4: false confessions, unreliable or fraudulent forensic science, police reproscatorial misconduct,
Speaker 4: defense learners that don't do the job, joehaus snitches, and
Speaker 4: of course, the most intractable problem that of racial bias.
Speaker 1: As Barry Sheck just explained, only five percent of cases
Speaker 1: involve DNA that can be tested and used in a
Speaker 1: way by a place like the Innocence Project to prove
Speaker 1: someone's guilt or innocence. Kevin Henry's case falls in the
Speaker 1: other ninety five percent. And in these ninety five percent
Speaker 1: of cases, mister Sheck's experience of more than forty years
Speaker 1: and that of his global organization tell them there are
Speaker 1: a number of key factors that lead to wrongful conviction.
Speaker 1: So let's quickly run through them and see if any
Speaker 1: of those factors relate to the case of Kevin Henry. First,
Speaker 1: eyewitness misidentification, Well, there was no eyewitness that ever pointed
Speaker 1: to Kevin Henry being anywhere near the body of Linda
Speaker 1: nor putting her body in the river. So there simply
Speaker 1: is no eyewitness misidentification, although there are people who clearly
Speaker 1: lied about where Kevin Henry was at that time. Issue
Speaker 1: number two, false confessions. Well, I think those of you
Speaker 1: who have listened to this podcast from the beginning will
Speaker 1: know that quite clearly Kevin Henry's case involved a false confession. Firstly,
Speaker 1: Kevin Henry has always maintained his innocence. The only time
Speaker 1: he may have strayed from that is during a police
Speaker 1: interview at the very beginning when he was first arrested.
Speaker 1: That's the interview where he repeatedly asked for legal assistance,
Speaker 1: where he on many times tried to end the interview
Speaker 1: where he was pressured by police. Remember that false confession
Speaker 1: was so troublesome it went for many hours, and yet
Speaker 1: the judge threw out the vast bulk of that confession
Speaker 1: because he said it was inadmissible and was taken unlawfully.
Speaker 1: Another factor, unreliable forensic science. Well, today you've just heard
Speaker 1: about the forensic science of tides and tidal movement. But
Speaker 1: you heard the expert who was called to speak on
Speaker 1: this issue was getting simple facts like AM and PM
Speaker 1: and high tide and low tide around the wrong way.
Speaker 1: I would say that's fairly unreliable forensic scientific evidence. And
Speaker 1: remember there was no forensic evidence such as blood, hair, skin,
Speaker 1: or anything else that linked Kevin Henry to the death
Speaker 1: of Linda. Issue number four police misconduct. Once again, we
Speaker 1: can talk about the vast array of police misconduct that
Speaker 1: began with the securing of the scene that took into
Speaker 1: the afternoon, despite Linda's body being found in the morning.
Speaker 1: That included people being able to trample in and out
Speaker 1: of Tanuba House where the bloodstains were for up to
Speaker 1: six hours after the body had been found, and nearly
Speaker 1: twenty four hours from when Linda was viciously assaulted. Other
Speaker 1: issues to do with police misconduct include the way they
Speaker 1: took witness statements from those who were intoxicated, the way
Speaker 1: they took multiple statements from people and only submitted those
Speaker 1: that matched their version of events. The way they hounded witnesses,
Speaker 1: some for many months who spoke about this on the stand.
Speaker 1: The way they didn't follow up and investigate someone who
Speaker 1: had allegedly con fest to their lawyer that they'd done
Speaker 1: it and that information was passed on that they never
Speaker 1: investigated duck Hart, who, of course, as we've outlined, had
Speaker 1: motive to have harmed Linda on that day, and who
Speaker 1: never checked duck Heart's alibi. And we could go on
Speaker 1: and on as to the issue of police misconduct. Issue
Speaker 1: number five, defense lawyers that don't do their job. Again,
Speaker 1: today you heard how the defense lawyers didn't explain to
Speaker 1: Kevin Henry his legal rights and his legal right to
Speaker 1: a new and fresh trial that did not include the
Speaker 1: lies that had been told by Susan Aubrey in a
Speaker 1: statement the judge ruled inadmissible, and that would have also
Speaker 1: ruled out some of the forensic evidence that was inaccurate
Speaker 1: that the judge was scathing of being present in a
Speaker 1: new trial. Issue number six, Charle House snitches. Well, we
Speaker 1: know that basically the only person that directly points their
Speaker 1: finger at Kevin Henry is Susan Aubrey. But Susan Aubrey
Speaker 1: had been charged with murder when she gave her statement
Speaker 1: against Kevin Henry, and she was in prison at that time.
Speaker 1: You also had other witnesses who, as the police admitted themselves,
Speaker 1: took their statements from people who were currently in prison,
Speaker 1: who were there that night, who may or may not
Speaker 1: have been involved, but who gave statements that were untruthful.
Speaker 1: How do we know they were untruthful? They admitted this
Speaker 1: on the stand. Finally, the issue of racial bias. Now,
Speaker 1: if you've listened to this podcast, you will understand the
Speaker 1: fact that Kevin Henry is an Aboriginal man, that Kevin
Speaker 1: Henry comes from a small community in central Queensland played
Speaker 1: a huge part in him ever being charged in the
Speaker 1: first place. It has to do with literacy, It has
Speaker 1: to do with the police's own words, getting a black
Speaker 1: for a black And we have outlined the systematic racism
Speaker 1: in the police department in Rockhampton at that time. You've
Speaker 1: heard from Kevin's own cousin, You've heard from the Courier
Speaker 1: male journalist who broke the story that led to the
Speaker 1: Fitzgerald inquiry in Queensland, which was all about police corruption,
Speaker 1: who spoke about the systematic racism in the Queensland Police
Speaker 1: force at that time. They are the seven issues that
Speaker 1: the world's leading expert on wrongful conviction says can lead
Speaker 1: to a wrongful conviction taking place, and that, as he says,
Speaker 1: any one of those issues can cause someone to be
Speaker 1: found guilty when they are in fact innocent. But, as
Speaker 1: we've just quickly demonstrated, not one of those issues occurs
Speaker 1: here in the trial of Kevin Henry. All seven of
Speaker 1: those issues occur in the trial of Kevin Henry. How
Speaker 1: on earth, then, was Kevin Henry found guilty beyond reasonable
Speaker 1: doubt because of the issues we just raised that lead
Speaker 1: to wrongful convictions in Australia and around the world. In America,
Speaker 1: Barryshack and his organization, the Innocence Project of overturned hundreds
Speaker 1: of wrongful convictions in the case of Kevin Henry. We
Speaker 1: are well on our way to doing the same